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What is a Power of Attorney?
A Power of Attorney (or POA, as they’re often called) is a legal document that allows someone you choose to make legal, financial and/or personal decisions about your estate on your behalf. You can choose in what circumstances and what type of decisions that person can make for you. This is a useful document to have in place if you fall ill unexpectedly, have an accident or start to experience some diseases common in old age, like dementia. The Power of Attorney can also be used if you go overseas or interstate and want someone to take care of some matters for you in your absence.
What decisions does a Power of Attorney allow someone to carry out on your behalf?
Your Power of Attorney can give someone you choose the power to make financial, legal or personal decisions on your behalf. The decisions about your estate that can be made should be outlined in the Power of Attorney. Financial decisions may include operating your bank account or controlling your business. Legal decisions may include selling your property or negotiating and signing contracts for your business. While personal decisions may include making lifestyle decisions like choosing to put an elderly parent into an aged care facility.
Types of Power of Attorney
There are different types of Power of Attorney – General Power of Attorney and Enduring Power of Attorney.
In Victoria, there are also special Power of Attorney documents that allow people to make medical decisions on behalf of another and for you to document your personal choices when it comes to medical treatment. These are called an Appointment of a Medical Treatment Decision Maker and an Advance Care Directive.
Enduring Power of Attorney
An Enduring Power of Attorney is one that continues even if you are able to make your own decisions. It gives someone the power to make financial and/or personal decisions on your behalf. This is often useful if you’re getting older and are finding it harder to do everything for yourself or have the onset of a disease, like dementia.
To make an Enduring Financial Power of Attorney, you must be able to make and understand your own decisions at the time the POA is signed. If you wait until you’re already unwell it may be too late.
General Non-Enduring Power of Attorney
A General Non-Enduring Power of Attorney gives someone the ability to act on your behalf in specific circumstances. It may be used if you need some assistance for a specific reason, like to buy or sell a house, manage your business or while you’re overseas or unwell. Once they’ve done what you need, the POA is no longer valid.
A General Financial Power of Attorney also ends if you die, become bankrupt or permanently lose the ability to make decisions for yourself, or if you set a specific date for it to come to an end.
Medical Treatment Decision Makers & Advance Care Directives
In Victoria, there are two specific types of medical documents that you can create. A Medical Treatment Decision Maker is someone that can make decisions about your medical treatments for you if you no longer can, like if you have dementia. It’s like a medical power of attorney, but they must take into account any Advance Care Directive that you have created and anything else that you have told them.
An Advance Care Directive is a document where you outline your preferences when it comes to medical care. If you’re not able to make decisions for yourself, this must be taken into account by both your Medical Treatment Decision Maker and your health care professionals.
Key considerations when appointing your Power of Attorney
When appointing your Power of Attorney, it’s important to think carefully about who you choose. This person will be able to make important decisions on your behalf, so they should be someone who you trust to look after your best interests and know what your preferences would be.
You must also think about when you would like them to exercise their powers under the POA and what decisions you want them to be able to make. You can outline these in your POA document so that it’s clear. Our lawyers will be able to guide you on these.
How MNG Lawyers can help
Deciding to put a Power of Attorney in place isn’t always an easy decision. There are many things that need to be considered. Our experienced power of attorney lawyers in Melbourne and Ballarat can help you sort out our Power of Attorney paperwork and take the stress out of the process for you.
Frequently Asked Questions
You can appoint a Power of Attorney if you’re over 18 and are able to make decisions for yourself. You must be able to understand what the POA is about, what powers you’re giving someone else, what decisions you can still make about your estate, how you can make changes to your POA, and that you can end your POA at any time whilst you still have capacity.
Your document must be in writing and signed by both yourself and the person you’ve appointed and two witnesses. One of the witnesses must be someone who is eligible to witness these types of agreements, like a medical doctor or lawyer. If the document is not witnessed in accordance with the legislative requirements, it will be invalid.
Your Power of Attorney can outline when it begins. This may be when you go into hospital, go overseas or are no longer able to make decisions for yourself, for example. For a General Non-Enduring Power of Attorney, the power continues until the specific task outlined in the document has been completed or a specific date has been reached. For an Enduring Power of Attorney, the power will continue indefinitely until it’s revoked.
Revoking a Power of Attorney can be done by signing a form, as long as you’re of sound mind and have the capacity to do this. If someone else believes your attorney is not acting in your best interests, they can apply to the Victorian Civil and Administrative Tribunal (VCAT) and ask them to revoke the power.